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Two Victories Against Repression

May 22, 2012

With politicians wanting to look tough and the public putting security over freedom the “war on terror” has become an excuse to erode civil liberties, such as the freedom of association and the right to a fair trial. Yet, in the U.S. and Israel, pushback against repression won modest victories, writes Lawrence Davidson.

By Lawrence Davidson

There have been two news stories in the last couple of days that have raised spirits and hopes both in the Middle East and in the United States. And, it is very good to get positive news in a world of constant struggle against greater forces of injustice and brutality.

Yet, it would be wise to restrain one’s glee. Those forces represent governments (including the one in Washington) and their bureaucracies. In both the U.S. and Israel, these forces have the backing of a majority of citizens.

U.S. District Judge Katherine Forrest

Thus, those actively fighting for the rights of the Palestinians and the protections of the U.S. Constitution almost certainly have additional decades of effort before a real light appears at the end of a dark and dangerous tunnel. That is why I look at these two news stories in sobering perspective.

1. Victory for the Palestinian hunger strikers.

On May 15, the Palestinian Prisoner Solidarity Network, Addameer, confirmed that the hunger strike being carried on by nearly 2,000 imprisoned Palestinians (some fasting for as long as 77 days) had ended because the Israelis and the Palestinians had come to an agreement brokered by Egyptian mediators. What was agreed upon?

The prisoners would end the strike and start eating again.

“There will be an end to the use of long-term isolation of prisoners for ‘security reasons’” and 19 prisoners held in such conditions will be moved out of isolation within 72 hours.

Family visits, which had been denied for “vague security reasons,” will now be allowed. This will be done within one month.

A standing committee will be formed to facilitate meetings between prisoners and the Israeli Prison Service to improve daily living conditions.

“There will be no new administrative detention orders or renewals for the 308 Palestinians currently in administrative detention, unless the secret files, upon which the detention is based, contain ‘very serious’ information.” Administrative detention is the Israeli name for arresting people and holding them indefinitely without charge or trial.

What does all this amount to? It amounts to the suspension of the threat of 2,000 Palestinian prisoners to starve themselves to death (an end which some Israelis would probably applaud) on the basis of a number of promises made by Israeli prison bureaucrats.

The promises may suggest that the Israeli government wants toavoid worsening its already poor international image, or that they feared the death of one or more hunger strikers would spark another intifada. It certainly does not reflect any concern on the part of the Israeli government for the human or civil rights of the Palestinians.

There is this interesting addendum to the Addameer news release: “Addameer has observed that Israel has consistently failed to respect the agreements it executes with Palestinians regarding prisoners’ issues. It will be essential for all supporters … to actively monitor closely the conditions inside Israeli prisons in order to assure that conditions meet compliance with international human rights and humanitarian law.”

Israeli prisons have never met such conditions, and we know this because they have been monitored for a very long time. My guess is that, true to form, the Israelis will initially appear to be fulfilling this agreement but the pace of change will be haphazard. Soon any effort to fulfill the promises will cease. In six months, the prisoners will either have to stop eating again or find another tactic.

2. Judge Strikes Down Indefinite Detention in the U.S.

On May 16, a federal district judge in New York, Katherine B. Forrest, struck down that portion of the National Defense Authorization Act (NDAA) that allows U.S. military authorities to hold alleged terrorists and their supporters, including American citizens, indefinitely. This ability is Washington’s even more severe version of Israel’s administrative detention.

In a suit brought by seven journalists, writers and anti-war activists whose work might bring them into contact with alleged terrorists, the claim was made that the bill’s “vague wording essentially said that anyone thought by the government to be colluding with terror suspects could be arrested and detained by the U.S. military.” Such a situation obviously constitutes violations of the Constitution’s due-process and free-speech rights.

This situation was originally concocted by the administration of George W. Bush. It was on his watch that extra-legal categories (“enemy combatants”) and extra-judicial procedures were created giving over suspected terrorists and their alleged supporters to the U.S. military.

This placed them (whether they happened to be citizens or not) beyond the civil courts and the protections they afford, or at least are supposed to afford. The corollary of this stance was, and still is, an assumption on the part of Congress and the White House that the United States is actually in an on-going state of war with terrorists.

This war will never end (after all, terrorism in various forms has existed throughout history) and the entire world, including the U.S. homeland, is now the battlefield. Under such circumstances, Bush and now Barack Obama have seen fit to suspend the Constitution when it comes to those judged (by them alone) to fall within the category of “terrorists” or “supporter of terrorists.”

It is this dubious legal background that led Judge Forrest to ask the government lawyers defending the NDAA “whether the journalists, who said their work brought them into contact with groups like Hamas or the Taliban, could be indefinitely detained” because the government decided they were giving some sort of amorphous aid and comfort to the enemy.

The lawyers could not guarantee that this would not happen. The judge was left with the distinct impression that “the government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by” the detention clause of the NDAA.

As Naomi Wolf noted in a short essay on the trial before Judge Forrest, “What truly disturbed me in that courtroom was the terrible fragility of all the checks to power that are supposed to be in place to protect us against such assaults on democracy. The trial and NDAA itself have been so inadequately reported by mainstream outlets that I keep running into senior editors and lawyers who have never heard of it.

“I recently cornered one southern Democrat at an event and asked him why he voted to pass the NDAA. He asked what my objection was. It allows the president to detain Americans without charge or trial, I pointed out. His aides had assured him this was not the case. Have you read the bill? I asked. It’s 1,600 pages he replied.”

Luckily for all of us Judge Forrest did read the bill before passing judgment. She then proceeded to strike down the detention provision of the Act. Yet it would be imprudent for anyone to take long-term solace in this fact. This is only the beginning of a very long struggle, the outcome of which is quite uncertain.

Congress, particularly the Republican-dominated House, has pointedly thumbed its nose at Judge Forrest by including indefinite detention in the 2013 version of NDAA. Clearly, the Congress as presently constituted has no intention of rewriting the detention provisions just found unconstitutional.

Thus, we can expect the government’s lawyers to go back to court to try to overrule Judge Forrest. If necessary they will take the issue to the Supreme Court. That is largely a George W. Bush court and can be expected to uphold indefinite detention, the Constitution be damned.

The average American has had nothing negative to say about this significant erosion of rights. Like Wolf’s “senior editors and lawyers,” most citizens in the U.S. are unaware that indefinite detention is an important issue that touches their lives. And when and if they become aware, they probably will not object. This is because the average citizen does not exercise his or her rights in any significant sense and is very suspicious of those who do.

It is those who assert opinions and/or behave in a way that runs counter to the majority stance who end up in need of free-speech and due-process protections. So, if you are one of those people, you most likely will not be able to count on your neighbor’s support if the police come knocking.

Staying Sober

On the upside, however, the two news stories analyzed above demonstrate that battles against even the most entrenched and powerful of foes can be won. To win wars, however, is another thing altogether. Yet that too may be possible.

Still, it should sober us all to realize that it will take staying power the sort of staying power that has already kept many struggles going for decades if not generations. Indeed, if we are to take history seriously, the sort of struggles described above may be never-ending if looked at in worldwide terms.

So, while both the persistence of the hunger strikers and the insight of a brave New York judge are to be applauded and be kept as cherished precedents, let’s heed the pledge of British Labour politician, Barbara Castle: “I will fight for what I believe in until I drop dead. And that’s what keeps me alive.”

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4 comments for “Two Victories Against Repression”

incontinent reader

May 22, 2012 at 7:29 pm

Professor, I think you’ve nailed it, re: the impact of the Hedges case, including the sobering reality that this will be a continuing fight with losses along the way, but also as a hopeful sign that remaining in the trenches and continuing the honorable fight will bring more successes along the way.

When one looks at how this new regime has been constructed, on one level, it is no more than a house of cards built on a false narrative of “war” and of “terrorism” against the U.S., a fiction used as a smokescreen to disguise an ever expanding geopolitical and economic neocon agenda of multinational financial interests, the Pentagon, CIA, and national security/military contractors, the energy industry, and the Israeli Turkish military and intelligence services whom we have used as proxies in the Middle East and Central Asia, but who have ended up controlling our legislative and executive process, through bribery, intimidation and sometimes espionage by our own top officials. The “cards” have remained standing in large measure because the judicial system and other accountability and enforcement mechanisms, including the independent media, have been corrupted and remained short circuited and neutralized by a “state secrets” classification system- a system enacted by Congress and asserted by the Executive to prevent disclosure of official wrongdoing and enforced by a generally complicit Judiciary that has bought into the “terrorism” narrative. Ultimately, it is this bogus “war on terror” that has been the predicate for the national security state, and for the veil of secrecy that has facilitated it.

So, breaking through this “separation wall” seems essential to 1) changing the public perception of the facts on the ground, 2) bringing the country back to some sense of sanity and normality where it can address the real issues affecting the nation, its people and their future, and 3) holding accountable those in Congress and the executive and judiciary who have perverted the system for their own benefit.

Right now so many are feeding off the trough that it will be hard to correct much of anything, but these things have a way of snowballing once the logjam is broken. Reopening the 9/11 Commission Report, with, perhaps, a shadow public citizen’s report that corrects the flaws of the original Commission report, and includes all of the important testimony of those government officials, including FBI and CIA agents, that was omitted and/or covered up, as well as an independent engineering analysis that finally addresses the right questions this time- questions that over 1,700 architects and engineers have demanded be investigated- would be a good first step to send a message to our legislators that if they don’t do the job they will become irrelevant. Getting a better handle on 9/11, its historical context, and how we allowed it to bring us to where we are would be a good first step.

rosemerry

May 23, 2012 at 3:39 am

Is it really true that the US public is so lacking in information or intelligence that they support the draconian measures already in place?

incontinent reader

May 23, 2012 at 10:11 pm

Maybe, it is lack of information in the face of the huge amount of MSM propaganda legitimizing the official narrative, maybe it is lack of intelligence where the boob tube has invaded the thought process, maybe it is resignation to one’s circumstance where one who is a lay person gives up because he or she is up against (almost) unlimited power and money and (almost) the best professionals money can buy, maybe it is disinterest, since it doesn’t affect everyone the same way, and those who haven’t been ground up by the corruption or physically abused by the system (in its myriad of ways) may find it hard to understand, and empathize with those who have, and with regard to the “war”, a government using a volunteer army and private contractors is more immune to public blowback than one with a universal draft- since it affects fewer of us in an immediate way, and those who want to kill have signed up by their free will (though even that is not always the case, to wit the new consciousness, or lack thereof, of the IDF. (Mea culpa for the run-on sentence.)

In any case, the nation needs a comprehensive reevaluation in which the legitimacy of the original 9/11 report is seriously challenged- (it has already been challenged in many ways, though, to date, only in bits and pieces)- and where all of the pieces are reexamined in a new report with real legitimacy offered in its place, and, where every one who was complicit in the report coverup, including the hacks on the 9/11 Commission, are themselves scrutinized and held accountable for what they did or didn’t do. After all, are we really fighting wars that now, at least, are ones that we have started without provocation?

What Wikileaks and the whistleblowers have done, is send a message that no official who has done wrong in secret can be certain he or she won’t be exposed, even if the system (right now under Obama) is prosecuting Bradley Manning and other whistleblowers and pursuing Julian Assange. They have also sent a message that
the state secrets classifications have been so seriously abused as to cover up massive and repeated officlal wrongdoing, including shield from the public a unilateral presidential power to detain, suspend constitutional rights, call out the military to handle domestic disturbances, decide in secret (and delegate to others- such as Brennan- to determine in secret) who should and should not be assassinated without a trial and independent judicial process- especially where there is NO WAR, declared or otherwise to support such Presidential war powers. One must challenge the findings to challenge the legitimacy and wisdom of the policies and challenge the bias and corruption of those advancing the policies. After all, are we really fighting wars now, that we haven’t started ourselves, and started without provocation?

As time goes on, more and more people will get involved in uncovering the dirt, whether or not, god forbid, the Government convicts Manning and/or prosecutes and locks up Assange, since Assange has built a movement that is now greater than himself, and it will continue to operate and report a greater and greater number of leaks, with the result that more and more of the system will be exposed to scrutiny and more and more people will be held to account, if not through convictions right away, at least through social approbation and excommunication.

Otto Schiff

May 28, 2012 at 5:40 pm

The United States government is starting to remind me of my early days spent in Germany under Hitler.
We need more public protests against the behavior of presidents and Congress men. The US is starting to resemble fascist countries.
Unending war and unconstitutional persecution of citizens.